Daily Times

Chief Justice of Pakistan Justice Umar Ata Bandial Wednesday observed that loyalty was the fundamental principle of the Constitution. The top judge’s remarks came as the apex court resumed hearing on the presidential reference, concerning the interpretation of Article 63(A), filed by the former PTI government.

“Defection is betrayal. It is the opposite of loyalty, which is a fundamental principle of the Constitution,” the CJP observed. He added that Article 5 of the Constitution focuses on loyalty. “It is the duty of every member of the parliament to be loyal to his party,” the CJP maintained. However, the CJP added that the party head may condone defection by not forwarding a declaration to the National Assembly speaker.

However, counsel for the Pakistan People’s Party (PPP) Farooq H Naek said that disloyalty was a harsh word. Moreover, Justice Ijaz ul Ahsan stated that if disloyalty was tantamount to dishonesty then Article 62(1)(f) of the Constitution will be applicable on the lawmaker, and they will be disqualified for life.

The judge further maintained that the party was the backbone of the parliamentary system, says a news report.

However, Naek insisted that Article 62(1)(f) could not be applied on account of defection. He argued that there was a difference between “loyalty” and “slavery”. He said if the court thinks that a defecting lawmaker could be disqualified for life, then it would be tantamount to re-writing the Constitution.

Advocate General Sindh Salman Talibuddin argued that insertion of Article 63(A) of the Constitution reflects how mature democracy is in the country. He requested the SC to return the presidential reference unanswered, questioning the timing of the reference’s filing and terming it “dubious”. Concluding the hearing, CJP Bandial asked the counsel for all the parties to explain to the court the purpose of the right to appeal granted to the lawmaker under Article 63(A) if they have already been de-seated by the Election Commission. “What will the SC decide the appeal under>” he questioned. The hearing of the reference has been adjourned till tomorrow.

A day earlier, while hearing the case, Justice Ijazul Ahsan, while referring to the recent criticism of the Supreme Court’s recent judgments, observed that it had become a culture in the country to blame courts if the decisions pronounced by the judges did not favour the parties involved. Justice Ahsan, who sits on the five-member bench hearing a presidential reference seeking interpretation of Article 63-A, made the remarks a day after Chief Justice Umar Ata Bandial asked why the apex court’s adjudication upon political matters was sought in the first place when leaders end up subjecting it to curses at rallies.

Apparently referring to former PM Imran Khan, who feels aggrieved by the judiciary’s actions on the eventful night of his ouster through a no-confidence vote ordered by the top court, the chief justice had said how could the judiciary deliver judgments if some political leader manages to gather 10,000 to 15,000 people in political rallies, only to reject the verdicts.

At the start of the hearing today, Naek recalled that Article 58-2(b) — under which elected governments had been sent packing in the past — was abrogated in 1997 through the 13th Amendment but was brought back by military dictator Pervez Musharraf in 2002. The article was again removed through the 18th Amendment in 2018, he said. Article 63-A was made a part of the Constitution via the 14th Amendment, he said, adding that it gave broad powers to party heads. The Election Commission of Pakistan (ECP) did have not have the authority to reject the party head’s decision prior to a presidential order amending Article 63-A in 2002 that reduced the powers of party heads, the PPP counsel said.

The 18th Amendment further reduced the powers of party heads and transferred them to the parliamentary leaders of the parties, he said, adding that after Article 63-A was amended, the authority to make the final decision was given to the SC.

“According to the 18th Amendment, the authority to make a decision on a reference related to Article 63-A was given to the ECP.” The amendment also bound the ECP to announce a decision within a month, he informed the court. He contended that the presidential reference seeking the court’s opinion was only related to sub-clause 4 of Article 63-A — which states that a parliamentarian would no longer be a member of the house and his seat would become vacant once the ECP confirms the party head’s declaration stating his defection. Justice Ahsan pointed out that Article 62(1)(f) did not specify the length of disqualification but its interpretation was provided by the SC. Naek responded that lawmakers had not determined the length of disqualification for defecting lawmakers under Article 63-A.

‘Ticket holders take oath against deviation’

Justice Ahsan remarked that ticket holders swear in their nomination papers that they would not deviate from party policy.